Ex libro XXIII

Dig. 27,1,33Idem libro vicesimo tertio quaestionum. Sed haec nimium scrupulosa sunt nec admittenda, nisi evidenter pater expresserit velle se dare etiam, si tutelam non administravit: semper enim legatum aut antecedit aut sequitur tutelam.

The Same, Questions, Book XXIII. This distinction, however, seems to be too finely drawn, and should not be admitted, unless the father plainly stated that he wished to bequeath the legacy, even if the legatee should not administer the guardianship; for a legacy is always presumed to have been given for this purpose, whether it precedes or follows the appointment of a guardian.

Dig. 27,1,35Idem libro vicesimo tertio quaestionum. Quid autem, si se non excusaverit, sed administrare noluerit contentus, quod ceteri idonei essent? hic poterit conveniri, si ab illis res servari non potuisset. sed hoc non quaerendum est, sed contumacia punienda est eius, qui quodammodo se excusavit. multo magis quis dicere debebit indignum iudicio patris, qui ut suspectus remotus est a tutela.

The Same, Questions, Book XXIII. But what if the guardian was not excused, but declined to administer the property, contending that the other guardians were solvent? Suit can be brought against him if the ward cannot recover from the others. He ought not, however, to obtain the bequest, and his obstinacy should be punished, because to a certain extent he attempted to excuse himself. Much more should anyone be declared to be unworthy of the bounty of the father, who has been removed from the guardianship because of being suspected.

Dig. 28,5,85Paulus libro vicesimo tertio quaestionum. Si servo fideicommissa data sit libertas, heres hunc eundem servum cum libertate heredem reliquisset, quaesitum est, an necessarius fiat heres. et humanius est et magis aequitatis ratione subnixum non fieri necessarium: qui enim etiam invito defuncto poterat libertatem extorquere, is liber esse iussus non magnum videtur beneficium a defuncto consequi, immo nihil commodi sensisse, sed magis debitam sibi accepisse libertatem. 1Idem probandum erit et in illo servo, quem testator ea lege emerat, ut manumitteret, si heres fuerit institutus: nam et hic seposito beneficio testatoris proprio iure poterit ad libertatem pervenire ex constitutione divi Marci. 2Idem et in eo, qui propria sua data pecunia emptus est ab aliquo: nam et hic poterit ab ipso testatore libertatem extorquere.

Paulus, Questions, Book XXIII. Where freedom was granted to a slave by virtue of a trust, and the heir appointed the same slave his own heir with the grant of his freedom, the question arose whether the said slave became a necessary heir. It is more just, and more consonant with the principles of equity, that he should not become a necessary heir, for he who could compel his freedom to be granted him even if the deceased had been unwilling when he ordered him to be free does not seem to have obtained great favor from the deceased, and, indeed, he is regarded rather to have received the freedom to which he was entitled, rather than to have had a favor conferred upon him. 1The same principle is applicable to the case of a slave whom a testator purchased under the condition that he would manumit him, if he should be appointed heir; for leaving the favor of the testator out of consideration, he can obtain his freedom in accordance with the Constitution of the Divine Marcus. 2The same rule applies to a slave who was purchased by another with his own money, for he also can compel the same testator to grant him his freedom.

Corpus iurisprudentiae Romanae

Digesta Iustiniani Augusti

Quaestionum libri

Ex libro XXIII